PARAS YADAV AND ORS.versusSTATE OF BIHAR

                       PARAS YADAV AND ORS.                                      A
                                      v.
                            STATE OF BIHAR

                            JANUARY 12, 1999

               [G.B. PATTANAIK AND M.B. SHAH, JJ.]                               B

      Oiminal Law :

      Evidence Act, 1872 : Section 32.

        Dying declaration-Statement of deceased--Recorded in a routine           C
manner by Sub-Inspector of Police and not as a dying declaration-After
death of deceased statement treated as dying declaratiol!-Deceased was in a
fit state of health to make statement-Held, Evidence of witnesses does not
suffer from any infinnity which would render dying declaration as doubtfal or
wiwoTthy of credence-In the circumstances of the case, lapse on the palt of      D
the Investigating Officer should not be taken in favour· of the ac-
cused-Prosecution evidence is required to be examined de hors such omis-
sions to find out whether the said evidence is reliable or not.

      Penal Code, 1860 : Section 302/34.
                                                                                 E
      Death by chlmra blow-No eyewitness to the incide/lt-Prosecution
case based upon complaint of deceased which was later treated as dying
declaration after death of deceased-Such oral dying declaration found ~eli­
able-Prosec1ition version co1Toborated by medical evidence'-lfeld, Convic-
tion of A-1 who inflicted chu1Ta blow, upheld-However, because of
inconsistencies in the evidence of witnesses with regard to the role played by   F
A-2 and A-3, their conviction set aside-'-Crimimil Trial.

      The appellant-accused No. 1 and the appellants-accused Nos. 2 and
3 were convicted by the. Sessions Court under Section 302 .of the Indian
Penal Code, 1860 and Section 302 read with Section 34 IPC respectively           G
and sentenced to undergo rigorous imprisonment for life. The High Court
confirmed the conviction. Hence this appeal.

      According to the prosecution, the deceased was found.lying on a road
with bleeding injuries when witnesses rushed to the scene of offence. The
deceased made a statement to the witnesses that accused Nos. 2 and 3             H ·
                                     55
    56                   SUPREME COURT REPORTS                  [1999) 1 S.C.R.
A caught hold of him while accused No. 1 gave a chwra blow l-:_ :.is abdomen.
    The Sub- Inspector of Police who was on patrolling duty recorded the
    statement of the deceased as a complaint. The deceased expired after 24
    hours. Later, the said complaint was treated as dying declaration. All the
    witnesses deposed that the deceased was in a fit state of health to make
    the statements on the date of incident.
B
          On behalf of the appellants it was contended that the Sub-Inspector
    of Police recorded the statement in a routine manner as a complaint and
    not as a dying declaration; and that there were inconsistencies in the
    evidence of the witnesses with regard to the role played by accused Nos. 2_
C   and 3 and, therefore, their conviction should be set aside.

          Allowing the appeal partly, this Court

          HELD : 1. It is true that there is negligence on the part of the
D   Investigating Officer. On occasions, such negligence or omission may give
    rise to reasonable doubt, which would obviously go in favour of the
    accused. But, in the present case, the evidence of prosecution witnesses
    clearly establishes beyond reasonable doubt that the deceased was con-
    scious and he was removed to the hospital by bus. All the witnesses
    deposed that the deceased was in a fit state of health to make the state-
E   ments on the date of incident. He expired only after more than 24 hours.
    No justifiable reason is pointed out to disbelieve the evidence of a number
    of witnesses who rushed to the scene of offence. Their evidence does not
    suffer from any infirmity, which would render the dying declaration doubt-
    ful or unworthy of credence. In such a situation, the lapse on the part of
F   the Investigating Officer should not be taken in favour of the accused, may
    be that such lapse is committed designedly or because of negligence. Hence,
    the prosecution evidence is required to be examined de hVI~· such omissions
    to find out whether the said evidence is reliable or not. [60-G-H, 61-H-C]

          Rarh Bihari Yadav v. State of Bihar, JT (1998) 3 SC 290, relied on.
G
         2.1. There is no reason to disbelieve the dying declaration as deposed   ~   ,
    by number of witnesses and as recorded by the Sub-Inspector of Police.
    The medical evidence also corroborates the prosecution version. Hence,
    the courts below have rightly convicted accused No. 1 for the offence
H   punishable under Section 302 of the Indian Penal Code, 1860. [61-E-F]
                            P. YADAVv. STATE[SHAH,J.]                         57

            2.2. However, the prosecution version with regard to the part played A
      by accused Nos. 2 and 3 is inconsistent. Considering the inconsistencies in
      the dying declaration as deposed by the witnesses with regard to the part
      played by accused Nos. 2 and 3, and as there is no direct evidence, it cannot
      be said that prosecution has proved beyond reasonable doubt that accused
      Nos. 2 and 3 are guilty of the offence punishable under Section 302 read B
      with Section 34, IPC. [62·A·B]

            CRIMINAL APPELLATE JURISDICTION                    Criminal Appeal
      Nos. 276-277 of 1997.

            From the Judgment and Order dated 3.9.96 of the Patna High Court
      in Crl. A. No. 14 and 62 of 1985.
                                                                                    c
              S.B. Sanyai KK Rai and P.K Roy for the Appellants.

              B.B. Singh for the Respondent.

              The Judgment of the Court was delivered by                            D

            SHAH, J. These two appeals are filed against the Judgment and
      Order dated 3rd September, 1996 in Criminal Appeal No. 14 of 1985 and
      Criminal Appeal No. 62 of 1985 by which Conviction of original accused
      nos. 2 and 3 under Section 302 read with Section 34 I.P.C. and that of        E
      original accused no. 1 under Section 302 I.P.C. is upheld by the High Court
      and they all have been sentenced to undergo rigorous imprisonment for
      life.

             It is a prosecution version that on 7th February, 1983 Sambhu Yadav
      who was working as an employee in the cloth shop at Chanpatia Bazar was p
      returning at about 7.00 p.m. on a bicycle. At about 800 p.m., when he
      reached about 100 yards north of Ghogha Chowk on the pitch road, he met
      three persons who abused him and asked him to stop his bicycle. There-
      after, Paras Yadav (accused no. 1) caught hold of the bicycle and accused
      nos. 2 and 3, Satan and Tulsi caught both the arms of Sambhu Y adav and
      started assaulting him with fists and slaps. In the meantime, Paras Yadav G
,.,   gave chhura blow in abdomen. Accused thereafter fled away. On hulla
      being raised, Jhakhari Yadav (p.w. 9), Bagur Raut (p.w. 8) Basgeet Yadav
      (p.w. 1), Gogari Yadav and other persons came there. It is the prosecution
      version that Sambhu Yadav (deceased) stated before the witnesses and the
      Police Sub-Inspector that he was surrounded by Tulsi, Satan, Munshi and H
    58                   SUPREME COURT REPORTS                  [1999] 1 S.C.R.

A Paras and thereafter Paras stabbed him on abdomen. It is also a prosecu-         "
    tion version that there was enmity between the accused person and the
    deceased on account of land dispute. Sub-Inspector of Police, Shri Dina
    Nath Singh (p.w. 16) arrived on the spot while he was on patrolling duty
    along with others and recorded farbdeyan under Section 307 I.P.C. against
    the three appellants, besides two unknown persons. The victim Was shifted
B   to hospital where he succumbed to the injuries at night on 8th February,
    1983. Thereafter, offence under Section 302 I.P.C. was added.

          The Sessions Court convicted the accused by relying on farbdeyan
    (Ext. 1), which was treated as dying declaration. The learned Additional
c   Sessions Judge held that as there was no eye witness to the occurrence the
    entire case rested on the dying declaration made by the deceased. The
    Court arrived at the conclusion that there was nothing to suggest that the
    Police Sub-Inspector Dina Nath Singh who recorded the dying declaration-
    cum-statement of Sambhu Yadav had any ill feeling against any of the
    accused persons. The said statement is consistent with what other prosecu-
D   tion witnesses have deposed before the Court. It is also found that dying
    declaration is corroborated by the medical evidence as the doctor (p.w. 11)
    who held post-morterm examination found injury in the abdominal region
    of the deceased by a penetrating weapon like dagger. After appreciating
    the entire evidence on record, the High Court has upheld the conviction
E   of the appellants. Hence, this appeal by special leave is preferred.

          Learned Counsel appearing on behalf of the accused vehemently
    submitted that there is no evidence on record to hold that the accused were
    having any common intention and there is no evidence on record from
    which common intention could be inferred. The evidence of the prosecu-
F
    tion witnesses is totally inconsistent with regard to the role played by
    accused no. 2 and 3 as stated by the deceased. It is further submitted that
    farbdeyari should not be treated as dying declaration as it is recorded in a
    routine manner by the Police Sub-Inspector.

G         The learned Counsel referred to the evidence of P.W. 1, Basgeet
    Yadav who has stated that at 8.00 p.m., he rushed to the newly built bridge    ,4

    and saw Sambhu Y adav lying there and he was bleeding. Sambhu, on being
    asked, informed that Paras Yadav, Tulsi and Munshi surrounded him and
    Paras gave a chhura blow. Similarly, P.W. 2, Bachu Das stated that he
H   alongwith Jagannath was going home on bicycle and when they reached at
                     P. YADAVv. STATE [SHAH, J.]                        59
the distance of 200 yards from Ghogha Chowk, they saw five persons going A
away. They were Paras, Munshi, Tulsi and Satan and fifth person could not
be identified. At Ghogha Chowk, they saw Sambhu falling down in an
injured condition. On inquiry, Sambhu told that Munshi, Tulsi and Satan
caught hold of him and Paras gave a Chhura blow. The statement to the
aforesaid effect was made by Sambhu to Sub- Inspector. Similarly, P.W. 4,
Ramchander Raut also stated that he rushed to the place of occurrence
                                                                           B
after hearing the noise and found that Sambhu had fallen down on the pitch
road. On inquiry, Sambhu told that he was stabbed by Paras while Tulsi,
Munshi and Satan had caught hold of him. P.W. 5 Kanchan Yadav,
deposed similarly and has stated that Sambhu told him that he was sur-
rounded by Munshi, Tulsi, Satan and Paras and Paras stabbed him on            c
abdomen. He also deposed it with regard to the enmity between Sambhu
and others accused on account of the land dispute.

      P.W. 6 Jokhu Yadav, P.W. 7 Nug Raut, p.w. 8, Ragur Raut, P.W. 9,
Jhakhari Yadav and P.W. 12 Wakil Rai also deposed to the same effect D
that Tulsi, Munshi, Satan caught him and Paras gave a knife blow. P.W. 13,
Lakshman Chowkidar has stated that he was patrolling with the Sub-In-
spector on the relevant date. Hearing hulla, they rushed at the spot and
saw Sambhu in injured condition. Sarnbhu told that Paras gave chhura blow
while Satan, Tulsi and Munshi instigated him. The next witness is P.W. 16
Dina Nath Singh, Police Sub-Inspector, who has stated that he recorded E
the statement of Sarnbhu Yadav at the place of occurrence at 8.30 p.m. on
7th February, 1983. His thumb impression was taken on the FIR.

       From the aforesaid evidence, one thing is clear that there is no eye
witness to the incident. Prosecution has relied upon the statements made      p
by the deceased Sambhu at the place where he was lying injured. As stated
above, these dying declarations consistently establish beyond reasonable
doubt that deceased Sarnbhu was conscious and was in a position to speak
after receiving the injuries. Considering the evidence of the prosecution
witnesses, following facts emerges :-
                                                                              G
        (a) No. of persons reached at the scene of offence after the
            incident and at the time injured Sambhu Yadav was lying in
            the bleeding condition. P.W. 1, 2, 4, 5, 6, 7, 8, 9, 13 and 14
            are the witnesses who have deposed that the deceased dis-
            closed the names of the accused persons. They have also H
    60                   SUPREME COURT REPORTS                  [1999] 1 S.C.R.

A                 stated that Police Sub- Inspector, Dina Nath Singh came there   ·"
                  and recorded the farbdeyan.

            (b) Dina Nath Singh, Police Sub-Inspector was on patrolling duty
                 and reached at the place of occurrence at 8.30 p.m. He
                 recorded the FIR on the spot. That FIR is taken as dying
B              · declaration after the death of Sambhu. It is true that FIR· is
                 recorded in a routine manner by the Police Sub-Inspector as
                 complaint and not as dying declaration. However, it has to
                 be noted that at t~e relevant time, Police Sub-Inspector was
                 recording FIR and at that stage, there was no question of
c                recording it as a dying declaration.

            (c) No. of witnesses deposed about dying declaration made by
                Sambhu on inquiry, that Paras gave chhura blow while Satan,
                Tulsi and Munshi caught hold of him.

D           (d) Witness Bachu Das P.W. 2 and P.W. 7, Jag Raut state that
                while going home by bicycle they saw five persons going away,
                namely, Paras, Munshi, Tulsi and Satan and the fifth could
                not be identified.

            (e) Sambhu was removed to the hospital by bus and that he was
E               conscious through out.

            (t)   Giving of chhura blow is corroborated by the medical
                  evidence.
                                             •
F       It has been contended by the learned Counsel for the appellants that
  the Investigating Officer has not bothered to record the dying declaration
  of the deceased nor the dying declaration is recorded by the Doctor. The
  Doctor is also not examined to establish that the deceased was conscious
  and in a fit condition to make the statement. It is true that there is
  negligence on the part of Investigating Officer. On occasions, such
G negligence or ommission may give rise to reasonable doubt which would
  obviously go in favour of the accused. But in the present case, the evidence
  of prosecution witnesses clearly establishes beyond reasonable doubt that
  the deceased was conscious and he was removed to the hospital by bus.
  All the witnesses deposed that the deceased was in a fit state of health to
H make the statements on the date of incident. He expired only after more
'

                         P. YADAVv. STATE [SHAH,J.]                           61
    than 24 hours. No justifiable reason is pointed out to disbelieve the           A
    evidence of number of witnesses who rushed to the scene of offence at
    Ghogha Chowk. Their evidence does not suffer from any infirmity which
    would render the dying declarations as doubtful or unworthy of the
    evidence. In such a situation, the lapse on the part of the Investigating
    Officer should not be taken in favour of the accused, may be that such
    lapse is committed designedly or because of negligence. Hence, the
                                                                                    B
    prosecution evidence is required to be examined de hors such ommissions
    to find out whether the said evidence is reliable or not. For this purpose,
    it would be worthwhile to quote the following observations of this Court
    from the case of Ram Bihari Yadav v. State of Bihar and others, J.T. (1998)
    3 SC 290.                                                                       c
            "In such cases, the story of the prosecution will have to be examined
            de hors such ommissions and contaminated conduct of the officials
            otherwise the mischief which was deliberately done would be
            perpetuated and justice would be denied to the complainant party D
            and this would obviously shake the confidence of the people not
            merely in the law enforcing agency but also in the administration
            of justice."

           In this view of the matter with regard to Paras Yadav, in our view,
    there is no reason to disbelieve the oral dying declaration as deposed by       E
    number of witnesses and as recorded in farbdeyan of deceased Sambhu
    Yadav. The farbdeyan was recorded by the Police Sub-Inspector on the
    scene of occurrence itself, within few minutes of the occurrence of the
    incident Witnesses also rushed to the scene of offence after hearing hulla
    gulla. The medical evidence as deposed by p.w. 11 also corroborates the         F
    prosecution version. Hence, the courts below have rightly convicted Paras
    Yadav for the offence punishable under Section 302 I.P.C.

           The next question would be with regard to the conviction of accused
    nos. 2 and 3. that is Satan Yadav and Tulsi Sonar under Section 302 read
    with Section 34 l.P.C. In our view the learned Counsel for the appellants G
    rightly pointed out that the prosecution version with regard to the part
    played by accused nos. 2 and 3 is inconsistent. Some witnesses deposed
    that the deceased informed that accused nos. 2 and 3 surrounded him while
    other witnesses deposed that the deceased told that they gave fist blows or
    slaps while some witnesses state that the deceased told that Tulsi Sonar H
                                                                                      '\
    62                    SUPREME COURT REPORTS                    (1999] 1 S.C.R,
A and Satan Yadav caught hold of the deceased. Considering, the aforesaid             ...
    inconsistencies in the dying declaration as deposed by the witnesses with
    regard to the part played by accused nos. 2 and 3, and as there is no direct
    evidence in our view, it cannot be said that prosecution has proved beyond
    reasonable doubt that accused ncis. 2 and 3 are guilty for the offence
B   punishable under Section 302 read with Section 34, LP. C.

          In the result, the appeals are partly allowed, the conviction of original
    accused No. l, Paras Yadav is confirmed and the conviction of original
    accused nos. 2 and 3, that is, Satan Yadav and Tulsi Sonar is set aside.
    Appellant Satan Yadav and Tulsi Sonar be set at liberty forthwith, unless
C   required in any other case. Ordered accordingly.

    v.s.s.                                                Appeals partly allowed.




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